Abstract
There is no question that hostility toward immigrants is interwoven with the history of the United States (Haug, n.d.; Reyes, 2009). Today, anti-immigrant sentiment coupled with the need for cheap disposable workers in a context of a global economy has changed the nature of immigration policy to what Trujillo-Pagán (2014) calls the U.S. “immigration complex.” This changing nature has shifted the U.S. system of immigration control to a system of crimmigration.
Crimmigration can be defined as the merging of the U.S. penal system with the immigration enforcement process (García Hernández, 2014; Sklansky, 2012). Prior to the criminalization of immigration, criminal law addressed offenses against property and people while immigration enforcement was relegated to the movement of people across borders. As García Hernández (2014) states, Immigration law … remained firmly encamped within civil law, sorting through the administrative matter of who was authorized to be in the country. People suspected of violating immigration law were accordingly processed through the civil immigration court system, an administrative unit first of the Department of Labor, then the Department of Justice.
The conflation of the two systems, criminal and immigration, has had consequences that have reverberated throughout our communities. Crimmigration entangles its victims (immigrant and citizen alike) in such a way that people experience the worst of both systems without the protections afforded to them by our constitution. Disproportionate minority contact, endemic to the criminal justice system on its best day (Alexander, 2010), is exacerbated by the existence of the federal deportation machinery at the system’s “back end.” (Gardener & Kohli, 2009; White & Kazerounian, 2011). Detainers also corrupt the criminal process by depriving criminal defendants of their ability to post bail (Miranda-Olivares v. Clackamas County, 2014).
Ultimately, the shift from a system of immigration to crimmigration has resulted in an immigration monolith created from the largest prison system in the world; the increased participation of local law enforcement officials in controlling and detaining immigrants through programs like Secure Communities; and the ensuring of a continued stream of exploitable and dispensable workers (García Hernández, 2014; Genova, 2002; Trujillo-Pagán, 2014).
Scholars describe the process of crimmigration as resulting in the erosion of civil rights and the building of the immigration complex. Of primary concern and a commonly used tool to this end are detainers. Immigration detainers are the central enforcement tool for the Secure Communities program (U.S. Department of Homeland Security, N.D.) because they are the principal tool for federal immigration officials to obtain custody over suspected immigration violators in the custody of state or local law enforcement officials. When federal officials learn that a suspected immigration violator is in a state prison or local jail, they issue a detainer or Form I-247. The result has been the prolonged detention of people who would otherwise be released because they are suspected of being in the United States without proper documentation.
An immigration detainer is not a criminal detainer. Criminal detainers have withstood the rigor of our justice system and therefore are highly regularized. (Lasch, 2013). In order to protect the constitutional rights of individuals, criminal detainers must rest upon an “untried indictment, information, or complaint.” The immigration detainer, by contrast, is issued according to no prescribed legal standard and often without any preexisting immigration proceeding.
The use of immigration detainers exploded with the implementation of the Secure Communities enforcement program in 2008, leading to multiple constitutional concerns. The number of detainers issued grew exponentially from 15,000 to 15,000 in 2007 and 2008 to over a quarter million in 2010. Detainers pose several constitutional problems (Fourth Amendment, Tenth Amendment, and Due Process. For more information on this, see García Hernández, 2014; Lasch, 2013). The cost of detaining immigrants at the behest of the federal government is not accompanied by federal dollars and the cost is shifted to the local jurisdiction (and taxpayer).
The processing of immigration detainers and the resulting consequences bring into question the way corporate profit takes precedence over constitutional rights. In addition, there is an ongoing need to continue to make criminals of immigrants (and those who resemble immigrants in phenotype) to feed the supply and demand chain of for-profit prisons. Ultimately, detainers are an example of the manner in which the criminalization of the marginal “other” erodes the protections of all people, citizen, and immigrant alike.
There is a national movement to cease to process detainers by local law enforcement unless accompanied by a warrant (Castillo, 2014). In March 2014, Professor Christopher N. Lasch from the University of Denver’s Sturm College of Law organized a conference to address the legal and social problems with detainers (for conference video, see http://www.law.du.edu/index.php/constitutional-rights-and-remedies/crimmigration-law-policy-workshop). The conference included immigration lawyers, civil rights advocates, local law enforcement, scholars, and immigrant rights organizations. The conference paired knowledge from the field, expertise from those jurisdictions that were successful in eliminating the automatic processing of detainers and qualitative research. The qualitative research served as a reminder of the humanity of immigrants.
The conference was a values-driven macro intervention rooted in critical race theory. It used feminist qualitative research method to engage the voice of people affected by structural injustice. Presenters and participants represented a variety of committed constituency that engage in the raising of awareness and call to action. Therefore, the process, content, and outcome of the conference were rooted in a belief about the intersections of oppression based on the inequity of power and resistance (Kleinman, 2007). In this way, the pairing of these two like-minded approaches across multiple disciplines created the opportunity to begin the steps toward systemic intervention. Of course, the workshop built on an already dynamic and active system of immigration lawyers, advocacy organizations, and religious institutions. The conference created the opportunity for education and dialogue across groups that then extended beyond these advocacy groups to include local law enforcement (http://www.law.du.edu/documents/enrlp/Crimm_Program.pdf).
In April 2014, at a press conference organized by the American Civil Liberties Union, Denver announced the end of immigration holds related to immigration detainers (Stokols, 2014). Denver joins a growing number of jurisdictions within Colorado and across the country that have announced the end of the use of immigration detainers for the illegal incarceration without due process and against the constitution.
These recent developments are part of a tidal wave of resistance that began around 2010 and built slowly and steadily for the next several years (Lasch, 2013). Santa Clara County in California and Cook County in Illinois were among the first jurisdictions to opt out of participation in the crimmigration complex. They relied on civil rights motivations, seeking to end racial profiling and eliminate “life in the shadows.” By early 2014, about two dozen jurisdictions had enacted ordinances or policies limiting compliance with immigration detainers. This year, following court decisions that made clear that the federal government cannot compel state and local participation in the crimmigration complex, and also that state and local officials can be held civilly liable for detaining immigrants, the pace of change accelerated. Some 60 jurisdictions in Oregon, Washington, and Colorado have moved to end their participation.
While the role of the Denver conference in the movement to end the use of immigration detainers is difficult to assess, it is clear that this structural intervention capitalized on an opportunity to create change and in a small and important way, justice for those whose voices are seldom heard.